Friday, January 15, 2016

What we value

The office responsible for providing free legal services to
defendants in New Orleans who can’t afford lawyers will start turning
clients away this week. The city’s public defender’s office warned last fall
that this day was coming. And it came on January 12, when the office
announced that it would have to stop taking on indigent clients charged
with serious felonies, particularly those facing life sentences. The
office no longer has enough staff or resources to handle the heavy load
of criminal cases coming across its desk, a problem largely attributable
to a paucity of funds from the state.

“Our workload has now reached
unmanageable levels, resulting in a constitutional crisis,” said Chief
Defender Derwyn Bunton in a January 12 press release. “OPD’s caseloads
far exceed national caseload standards, and we simply don’t have the
capacity to ethically represent the most serious offenses.”

Now the ACLU is suing, well, they have to sue the office itself, for constitutional violations caused by the funding crisis.

It’s an odd lawsuit in the sense that the ACLU doesn’t believe that the defenders are at fault.

The
ACLU is asking a judge to find that the waiting list violates the
plaintiffs’ rights to counsel, due process and equal protection under
the Sixth and Fourteenth Amendments. If a judge agrees, says Buskey,
that will put the state legislature on notice. If the legislature
doesn’t get the message, he says, they can ask the judge to insist on
adequate funding.

“We want to highlight the fact that there are
people right now suffering while we go through all these funding
shortages,” says Buskey. “Our hope is that by doing that we really put
pressure on the state to fix this inherently unreliable user-funded
system.”

Currently the public defender is funded primarily by traffic fees which, in and of itself, is a problem. But it's especially bad when there isn't enough of that revenue to go around because, well..

The ACLU alleges that some defenders in the state have pressured sheriffs to increase traffic enforcement. According to Al Jazeera America,
nearby St. Charles Parish benefits from eight major highways crossing
through and has plenty of traffic ticket and court cost revenue to fund
its public defender budget.

Public defender offices around the
country complain of inadequate funding. In Louisiana, public defender
offices representing poor people in Winn, Lafayette, and St. Bernard
parishes have also reported wait lists, says Buskey.

“The right to
counsel is an empty constitutional promise without adequate funding,”
emails Cardozo School of Law professor and ethics expert Ellen
Yaroshefsky, who testified in November on behalf of the defenders.
“Clients languish in jails and plead guilty (often when they are not)
when competent lawyering might have secured their release. They rarely
see their lawyers and they may be found guilty at trial because of lack
of money to investigate a charge. It is an impossible situation for
lawyers who care deeply about providing zealous advocacy and certainly
for the clients who are in dire need of counsel. It is the
responsibility of the courts and the legislatures to insure that the
system has some measure of integrity in providing right to counsel. Poor
people of color—the overwhelming number of accused– have the right to
counsel that should not be merely an empty promise.”

Anyway so we're scrambling to figure out how to establish and maintain a constitutionally sound criminal justice system. One would think that the city would be able to find some money somewhere to cover this crucial gap, at least until the legislature can act on the problem. Here's a speech from 2010 where Mayor Landrieu tells us the city budget is a "moral document because it says everything about who we are and what we value."

NEW ORLEANS – The sudden resignation of the city’s French Market
Corp. director last week was met with disappointment from people who
hailed him as a transformative leader.

It also fostered an odd
secrecy Tuesday night as the Landrieu administration blocked WWL-TV’s
attempts to ask ask the public agency’s independent board about Jon
Smith’s departure on the heels of a $35,000 retroactive pay-raise
approved in hopes of keeping him in place.

Smith arrived from the
private sector to lead the French Market Corp. two years ago, and his
brazen style had an immediate impact. He called some of the trinkets
sold by market vendors “garbage” and demanded improvements.

Residents
in the Upper Pontalba Building, one of the French Quarter properties
owned by the autonomous public agency, said Smith fixed many problems in
the historic building. He also implemented revenue sharing with the
city, raising millions more for city coffers through use of the agency’s
parking lots.

He polished the agency’s tarnished image shortly
after a criminal trial exposed former director Kenneth Ferdinand’s
lavish use of a public credit card.

“We never know we’re living in
a golden age until it’s over,” said Justin Winston, head of the Flea
Market Vendor Committee, told the French Market Corp. board at an
emergency meeting Tuesday to address Smith’s resignation.

The
board, too, was taken by surprise. Especially since it was just four
months ago that they voted to give Smith the maximum pay raise
allowable. The raise was also retroactive to Jan. 1, 2014, giving him a
lump-sum payment that increased his 2015 annual salary to $147,000.

So that's a problem. Maybe it's a bigger problem than the Public Defender's constitutional crisis. I really can't say what Mitch's people are thinking anymore. If I had to guess, though, I'd offer the possibility that the Mayor has elected to allow this all to come to a head in the hope that it will spur the state toward a more permanent structural fix. In the meantime, though, defendants are still stuck on that waiting list. Unlike Smith, they aren't going anywhere for a while.